Access to Justice and The Rule of Law: UNISON v Lord Chancellor

The Supreme Court today handed down a landmark judgment. The decision concerns employment tribunals which are designed to provide employees with an inexpensive and accessible method of bringing claims against employers who have acted unlawfully.

Transfer the costs burden of the tribunal system from taxpayers onto its users;

Deter people from bringing unmeritorious or vexatious claims; and

Encourage parties to settle their disputes earlier.

The fees ranged from £390 to £1,200, based on the complexity of the case rather than its value. Their introduction resulted in a “dramatic and persistent” fall, of around 70%, in the number of claims being pursued.

In March 2017, UNISON and the Lord Chancellor appeared before seven judges in the Supreme Court. The former argued that the Fees Order unlawfully interfered with the right of access to justice of those using tribunals and that the fees discriminated unlawfully against women and other protected groups. In two unanimous judgments, delivered by Lord Reed and Lady Hale respectively, the court found for UNISON on both counts and quashed the Order with immediate effect. This blog focuses on the first judgment.

The decision is strongly worded. On more than one occasion, the court notes that the Lord Chancellor was unable to explain how the figures making up the fees were even reached. It is also made clear that the system by which claimants could apply to have all or part of their fees remitted was inadequate. In short, the court found that there was a real risk that the Fees Order effectively prevented access to justice; first, by making the service unaffordable to many and second by rendering it futile or irrational to pursue certain claims:

[M]any claims which can be brought in ETs do not seek any financial award: for example, claims to enforce the right to regular work breaks or to written particulars of employment. Many claims which do seek a financial award are for modest amounts, as explained earlier. If, for example, fees of £390 have to be paid in order to pursue a claim worth £500 (such as the median award in claims for unlawful deductions from wages), no sensible person will pursue the claim unless he can be virtually certain that he will succeed in his claim, that the award will include the reimbursement of the fees, and that the award will be satisfied in full.

Twitter has since been awash with statements like the following by Michael Reed of the Free Representation Unit:

They are right to celebrate. In a decisive and unanimous decision, the Fees Order has been relegated, at least in its current form, to the burgeoning scrapheap of failed policies imposed by Chris Grayling during his tenure as Lord Chancellor. Crucially, aside from the immediate relief provided by the court, the judgment also stands as one of the clearest and most impressive statements about the importance of access to justice as an aspect of the rule of law.

The notion of ‘the rule of law’ can be found in the preambles of the Universal Declaration of Human Rights, the European Convention on Human Rights and has pride of place in various other constitutional documents around the world. Despite its apparent importance, the phrase is often left unencumbered and perched alongside similarly vague references to lofty principles such as “liberty” and “freedom”.

In a bid to lend greater granularity to the principle, Tom Bingham, previously a Law Lord himself, rendered the following definition in his seminal book on the subject:

[T]hat all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered by the courts.

Like Tom Bingham’s book, Lord Reed’s judgment begins with a brief excursion through several centuries of common law jurisprudence. He begins in 1215 with the oft quoted clause 40 of Magna Carta: “[t]o no one will we sell, to no one will we deny, or delay right or justice”. Therein he identifies an early statement of the notion of access to justice which is “inherent in the rule of law” and constitutes a thread which runs through our common law history.

The history lesson and defence of the principle are also coupled with a sharp riposte. It is directed at those identified as labouring under the misapprehension that the administration of justice is a “service” like any other – only impacting those directly involved.

Lord Reed explains:

Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established […] The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

He adds that the mere knowledge that we have the ability to place our grievances before a court, to be determined based on a set of publicised legal principles is what “underpins everyday economic and social relations”. His words, buttressed by the unanimity of the decision, stand as an erudite and powerful defence of one of the central principles undergirding our democracy. The judgment, which serves as an injunction to the executive not to overstep the mark, is also liable to have far-reaching implications.

Importantly, in this connection, the ruling sits alongside a string of similar cases. In 2013, Barbara Gordon-Jones won her judicial review as the High Court declared Chris Grayling’s restriction on books being sent into prisons to be unlawful. Earlier this year, the Court of Appeal ruled that the removal of legal aid for prisoners at particular hearings produced a regime which was “systematic[ally] unfair”. Most recently, the legal aid cuts introduced on Chris Grayling’s watch came under fire by Mr Justice Francis in the Charlie Gard litigation.

Incredibly, it therefore appears that despite making every attempt to constrain judicial review proceedings and to devastate the legal system, Chris Grayling, and the Conservative Party of which he forms a part, have inadvertently achieved the opposite. By backing lazy and unlawful policies, they have handed our judges every possible opportunity to assert their constitutional role and push back against overreaches by the Executive. They have also managed, somehow, to inspire bipartisan sympathy in the media over the denial of legal aid to Charlie Gard’s parents.